Dan River spill revives concerns over coal ash ponds

Cross has been keeping a wary eye on a pair of coal ash ponds near his Moncure home at Duke's now-decommissioned Cape Fear Steam Electric Plant since December 2008. That's when a Tennessee Valley Authority facility in Kingston, Tenn., dumped 5.4 million cubic yards of coal ash into the Emory and Clinch rivers and brought a national spotlight to the issue of coal waste. 

The Dan River spill is nowhere near as massive as the 2008 disaster – Duke estimates that roughly 82,000 tons of ash mixed with 27 million gallons of contaminated water poured into the Dan River this week. That said, there's really no amount of coal ash you want floating around in a drinking water supply. 

"There's all kinds of toxic chemicals in it," Cross said.

The material is what's left over after coal is burned to power electric plants. It contains arsenic, mercury, lead, boron and other heavy metals. In 14 locations across North Carolina, including at the Dan River plant and Moncure's Cape Fear plant, coal ash is stored in ponds perched on the side of rivers or lakes used for drinking water and recreation.

The now-closed plant in Moncure "sits very close to the Cape Fear River," Cross said. A satellite map of the site shows a pair of coal ash ponds, the closer of which sits roughly 750 feet from the Cape Fear's banks. 

Duke's Dan River plant near Eden in Rockingham County is also perched near the same river that provides water that coal-fired boilers would turn into steam for power generation. 

Officials with the Department of Environment and Natural Resources said earlier this week that initial tests on the Dan River itself did not indicate a problem with the water, but they emphasized "these initial results do NOT mean the water is safe." Chemicals and heavy metals from the spill have the potential to make water treatment difficult for local utilities and kill fish and plants in the river.

On Thursday, the nonprofit Waterkeeper Alliance said its own sampling had found "extremely high levels of arsenic, chromium, iron, lead and other toxic metals typically found in coal ash."

Environmental groups and some policy makers say the Dan River spill could have been avoided if the state had heeded lessons learned from the larger spill in Tennessee five years ago.

"It's just really frustrating because we saw it happen in Kingston in 2008, and we knew then our regulations weren't strong enough," said Rep. Pricey Harrison, D-Guilford.

The state has filed court actions against Duke, alleging the company has violated its water quality permits at all 14 of its coal ash pond locations. But environmental advocates and some policy makers say North Carolina has not pressed hard enough to force the company to completely clean up the locations, and lawmakers have virtually ignored legislation that would have forced the companies to clean up the site. 

The Dan River spill is the result of ruptured storm water pipe that ran under the pond containing the toxic coal ash material. None of the ponds at the 13 other coal ash sites in North Carolina has such a pipe, according to Duke spokesman Justin Landon.

"This is a unique situation as far as the design of this particular site," Landon said.

But that assurance that Dan River is somehow unique is cold comfort to environmental watchdogs.

"At first, they were telling us it was a reinforced concrete pipe that they had no idea how it failed," said Frank Holleman, a lawyer for the Southern Environmental Law Center.

Duke later said the pipe was made of corrugated metal.

"They certainly weren't maintaining it properly if they didn't know what kind of pipe they had," Holleman said.

In fact, Duke said the Dan River pond was inspected on Jan. 31, only days before the spill. 

But Holleman and others in the environmental community say inspections and water monitoring only hold problems at bay rather than clean them up permanently. He points out that power companies in South Carolina with similar facilities have opted to dry their ponds, extract the coal ash and move it to dry storage facilities. 

In fact, Duke and what was then Progress Energy – now part of Duke – would have been ordered to do just that under a 2009 bill Harrison filed in the wake of the Tennessee spill. That measure was shuffled through two different committees but never sent to the full House for consideration.

At the time she filed her bill, Democrats controlled the General Assembly. Today, Republicans are in control. Neither party has shown an appetite to force power companies to do away with the ponds.

"The real frustration for me was I couldn't make headway with the leadership in my party or the current majority," Harrison said.

She may find lawmakers more receptive this year. In a news release today, state Senate President Pro Tempore Phil Berger, R-Rockingham, asked a key environmental committee to investigate the Dan River spill. The Dan River plant is in the middle of Berger's district.

"I am very concerned about recent reports of the discharge of untreated waste into the Haw River and the discharge of coal ash into the Dan River. I am also very concerned about the quality and timeliness of the responses of everyone involved," Berger wrote.

Duke is a major electric utility in both the Midwest and southeastern United States. It reported $6.7 billion in profits in the third quarter of 2013.

Power companies are governed by a complex web of laws and regulations, so it's not surprising Duke shows up as both a big player in political campaigns and the lobbying front. The company has 10 lobbyists registered with the North Carolina Secretary of State's office.

According to the campaign watchdog group Democracy North Carolina, the company's PAC and its executives donated $332,836 to Gov. Pat McCrory's 2008 and 2012 campaigns and have donated more to other legislative candidates and independent spending groups, such as the Republican Governor's Association. McCrory and several of his administration's top officials, including Commerce Secretary Sharon Decker, are former Duke executives. 

Critics say the combination of connections and campaign donations have given the company undue clout with the very officials who are supposed to oversee it. 

Still, Harrison and her allies can point to some successes. In 2010, the Democrat helped push through a measure making power companies' coal ash dams subject to state safety inspections, from which they had previously been exempt. 

But more needs to be done to avoid future spills like the one this week on the Dan River, she said. 

"It's a problem, and we need to face it," she said.

Ironically, the material in coal ash ponds that poses a threat to waterways is the result of efforts to clean up the air. Much of the coal ash is captured by scrubbers that keep the pollutants from being discharged into the atmosphere. 

More modern plants use "dry" storage methods, and some power companies sell their coal ash to be recycled in the production of drywall or as fill for roadbeds. Environmental watchdogs and power companies have clashed over such recycling methods, with some advocates arguing that using the material simply spreads around the risk for exposure to toxic materials. 

Not in dispute is that wet coal ash ponds pose a headache and hazard for all involved. Many of the ponds are little more than unlined lagoons with earthen berms separating the stored pollution from rivers.

"It's always been part of our plans to close the ash basins at our retired plants," said Duke Energy spokeswoman Lisa Hoffmann.

What is in dispute is how those basins will be closed and how quickly the company will have to act. 

At the company's eight retired coal plants across the state, the company may "cap in place" the ponds, meaning they would be drained of water, dried completely, and then sealed with an impermeable liner. Those sites would then be monitored to ensure that the remaining coal ash is not affecting nearby groundwater.

Holleman and other activists say the state should force the company to remove the coal ash entirely and put it in dry storage. 

"It will be interacting with the groundwater and sending toxic pollutants into the groundwater and the neighboring drinking water reservoirs and lakes," he said.

This slow leach of toxic chemicals is at the heart of litigation between the state, Duke and groups such as the Southern Environmental Law Center. 

"We have an ongoing, slow spill across the state at all 14 locations in addition to this large, dramatic spill," Holleman said.

Duke disputes that allegation, saying testing near its coal ash ponds do not show elevated levels of toxins. 

"What our monitoring tells us, after decades and decades of these facilities being there, is that the river water is still of good quality," Hoffman said.

North Carolina regulators brought enforcement actions against Duke in 2013 under pressure from environmental groups. SELC had notified the state that it planned to go to court itself under a provision of the federal Clean Water Act that allows outside parties to enforce environmental laws. 

The state suits say of the ponds that "without assessing the problem and taking corrective action, pose a serious danger to the health, safety and welfare of the people of the State of North Carolina and serious harm to the water resources of the State."

However, in a proposed settlement regarding two of Duke's 14 sites, the state has not pushed to force the company to remove the material entirely. Rather, it has called for a monitoring regimen similar to what would be done under a "cap in place" solution.

"It is yet to be determined on a case-by-case-by-case basis what is the most appropriate way to close out these ash ponds," said Susan Massengale, a spokeswoman for DENR's Division of Water Resources. "Guidance for that is in development. Moving large amounts of ash to another location is not without its potential environmental impacts. In some cases, stabilizing the ash in its current location will be more appropriate."

Asked about the Cape Fear plant in Chatham County, Hoffman said the company has not decided what method might be the most appropriate.